Hornbeck Offshore Services, L.L.C. v. Salazar et al

Filing 37

MOTION to Intervene by Center for Biological Diversity, Defenders of Wildlife, Florida Wildlife Federation, Natural Resources Defense Council, Sierra Club. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion Hearing set for 7/7/2010 11:00 AM before Magistrate Judge Joseph C. Wilkinson Jr.. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 - Declaration of Michael Senatore, # 3 Exhibit 2 - Declaration of Alison Granshaw, # 4 Exhibit 3 - Declaration of Peter Galvin, # 5 Exhibit 4 - Declaration of Frank Jackalone, # 6 Exhibit 5 - Declaration of Manley Fuller, # 7 Proposed Pleading Complaint in Intervention, # 8 Notice of Hearing Notice of Hearing Before Magistrate Judge Wilkinson)(Suttles, John)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA HORNBECK OFFSHORE SERVICES, LLC, ) ) Plaintiff, ) ) v. ) ) KENNETH LEE "KEN" SALAZAR, in his ) official capacity as Secretary, United ) States Department of the Interior; ) ROBERT "BOB" ABBEY, in his official ) capacity as Acting Director, Mineral ) Management Service; and MINERALS ) MANAGEMENT SERVICE, ) ) Defendants. ) __________________________________________)

CIVIL ACTION NO. No. 10-1663(F)(2) SECTION F JUDGE FELDMAN MAGISTRATE 2 MAGISTRATE WILKINSON

MOTION TO INTERVENE Pursuant to Federal Rule of Civil Procedure 24(a), Defendants-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively, "Applicants") respectfully move this court for leave to intervene as of right in the above-titled-action pursuant to Federal Rule of Civil Procedure 24(a). In the alternative, Applicants move for permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). Counsel for Applicants has conferred with counsel for Plaintiffs Hornbeck Offshore Services, LLC et al. ("Plaintiffs") and counsel for the federal defendants. Counsel for

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Plaintiffs opposes this motion and counsel for the federal defendants takes no position on this motion. Pursuant to LR 7.4 & 7.6E, Applicants lodge with this motion a copy of their memorandum in support of the motion and their complaint-in-intervention. As detailed further in Applicants' memorandum in support of this motion, they meet the requirements under Rule 24(a)(2) for intervention as of right. Applicants' motion is timely, as it has been filed less than two weeks after the initial filing of complaint in the case, and within a week of Applicants' being made aware of the litigation and that there interests might be implicated. As a result, there will be no prejudice to the parties to the litigation from this intervention. Additionally, Applicants have direct, substantial, and legally protectable interests and the outcome of this litigation may, as a practical matter, impair their ability to protect those interests. Applicants interest in the litigation include: protecting endangered species and their habitat, ensuring the continuing existence and preservation of the outer continental shelf and the lands along the shores of the Gulf of Mexico for the aesthetic and recreational enjoyment of their members, and ensuring the economic livelihood of those members, such as commercial and recreational fisherman, whose economic livelihood and/or enjoyment depends on the protection of that environment and who would suffer severe harm if future spills occurred as a result of the moratorium being enjoined. Furthermore, the drilling moratorium at issue in this case helps to reduce the risk to these interests by ensuring that the government has an opportunity to evaluate and impose measures to ensure safety and reduce the potential environmental effects of drilling. The moratorium also affords better opportunities for the government and Applicants to secure compliance with environmental laws, and thus to protect Applicants' interests. As a result, the outcome sought by Plaintiffs ­ the enjoinment of this moratorium ­ would result in harm to and

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have an adverse effect on Applicants' interests. If such harm occurred, it would likely be irreparable, and thus Applicants would be unable to take effective action to protect their interests in the event of an accident. Finally, Applicants' interests may not be adequately represented by the parties to this litigation. The scope of the interests represented by the United States may cause it to approach this case differently than if it represented Applicants' more targeted focus on the environmental and sustainability implications of the moratorium. The government must consider both the economic potential of development on the outer continental shelf and the environmental impact of those developmental actions, and thus may take positions that promote development at the expense of the environment if such a course of action is deemed to be in the larger public interest. Since Applicants' interests exclusively concern the environmental benefits and longterm sustainability of the waters and lands of the Gulf, such actions inevitably would mean that the government's interests would be different from Applicants. Furthermore, as indicated by Applicants' various lawsuits against the government, they disagree with many of the policies and practices adopted by the government with respect to offshore drilling. Based on these differing views about the effectiveness of existing regulatory mechanisms, the government may be more open to settling the suit on terms that Applicants would not accept, thereby showing the potential inadequate of the representation of an intervenor's interest by the governmental agency. Plaintiffs also meet the requirements for permissive intervention under Rule 24(b)(2). As discussed above, Applicants' motion to intervene is timely since it was filed within ten days of the filing of the complaint. Furthermore, Applicants' claims and defenses have common issues of fact and law with the underlying claims and defenses in Plaintiffs' action. This case challenges the Federal government's moratorium on deepwater drilling, which aims to provide

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better oversight and regulation of safety and environmental measures that would protect Applicants' interests. Since Applicants directly oppose this challenge, their claims and defenses inherently derive from the same common questions of law or fact. In addition, Applicants' intervention will not unduly delay this case or otherwise prejudice any existing party. WHEREFORE, Applicants respectfully move for leave to intervene as a party herein and to participate fully in the proceeding. Respectfully submitted, this 18th day of June, 2010.

/s/ John Suttles John Suttles Louisiana Bar No. 19168 Counsel for Defendant-Intervenor Defenders of Wildlife SOUTHERN ENVIRONMENTAL LAW CENTER 200 West Franklin Street, Suite 330 Chapel Hill, North Carolina 27516 Telephone: [phone] Facsimile: [phone] [e-mail] Catherine M. Wannamaker, application for admission forthcoming Counsel for Defendant-Intervenor Defenders of Wildlife SOUTHERN ENVIRONMENTAL LAW CENTER 127 Peachtree Street, Suite 605 Atlanta, Georgia 30303 Telephone: [phone] Fax: [phone] s/_Alisa A Coe____ Alisa A. Coe La. Bar No. 27999 David G. Guest Fla. Bar No. 0267228 Pro Hac Vice Pending Monica K. Reimer Fla. Bar No. 0090069 Pro Hac Vice Pending /s Mitchell Bernard Mitchell Bernard NY Bar No. 1684307 Pro Hac Vice application forthcoming Natural Resources Defense Counsel 40 West 20th Street New York, NY 10011 Phone: [phone] Fax: [phone]

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Earthjustice P.O. Box 1329 Tallahassee, FL 32302-1329 Phone: [phone] Fax: [phone]

David Pettit CA Bar No. 67128 Pro Hac Vice application forthcoming 1314 Second Street Santa Monica, CA 90401 Phone: [phone] Fax: [phone] COUNSEL FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.

COUNSEL FOR SIERRA CLUB and FLORIDA WILDLIFE FEDERATION

/s Miyoko Sakashita Andrea A. Treece CA Bar No. 237639 Miyoko Sakashita CA Bar No. 239639 Pro Hac Vice applications forthcoming 351 California Street, Suite 600 San Francisco, CA 94104 Phone: [phone] COUNSEL FOR CENTER FOR BIOLOGICAL DIVERSITY

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CERTIFICATE OF SERVICE I hereby certify that on June 18, 2010, I electronically filed the foregoing with the Clerk of court by using the CM/ECF system, which will send a notice of electronic filing to the following: Carl David Rosenblum Alida C. Hainkel Grady S. Hurley Guillermo A. Montero Brian M. Collins Sharon Denise Smith [e-mail] [e-mail]; [e-mail] [e-mail]; [e-mail] [e-mail]; [e-mail]; [e-mail] [e-mail]; [e-mail] [e-mail]; [e-mail]; [e-mail]

I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CM/ECF participants: John F. Cooney Venable, LLP 575 7th St., NW Washington, DC 20004 Marjoria Ann McKeithen Jones Walker Place St. Charles 201 St. Charles Ave., Suite 5100 New Orleans, LA 70170-5100 /s/ John Suttles John Suttles Louisiana Bar No. 19168 SOUTHERN ENVIRONMENTAL LAW CENTER Attorney for Defendant-Intervenor Defenders of Wildlife 200 West Franklin Street, Suite 330 Chapel Hill, North Carolina 27516 Telephone: [phone] Facsimile: [phone] [e-mail]

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